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Friday, 17 December 1993
Page: 5023


Senator ALSTON (Deputy Leader of the Opposition) (7.14 p.m.) —I speak to both the preamble and the amendment. The preamble, I think, is intended to set out the government's general philosophical direction. It undoubtedly does that from its perspective, but I think it certainly overstates the case when it purports to express views on behalf of the entirety of the people of Australia. In that sense, it is, I think, a little more than a political statement.

  The words `The Parliament of Australia therefore enacts' is of course the usual introductory clause, and we find that at the end of this preamble. But before we get there, we have statements like, `The people of Australia intend to rectify the consequences of past injustices'. It is one thing to say that as a result of the High Court decision there is now a very different approach taken not just to native title but also to the rights of the Aboriginal community as they currently are, but one cannot of course right any wrongs that might have occurred many years ago.

  Certainly, if one adopts the normal approach of looking at who might be responsible for an injustice, it is completely unfair, I would have thought, to suggest that those who did not believe that they were committing any injustices should therefore be condemned with the vision of 20-20 hindsight. Therefore, I think that is just another example of an overstatement of the position.

  The preamble talks in terms of the needs of the broader Australian community requiring certainty and the enforceability of acts potentially made invalid. I think all one can say is that the whole of the rest of the bill gives the lie to that noble aspiration. Certainly no-one would deny the need for certainty and enforceability, but to suggest that in any shape or form this bill does much in that regard is, again, a gross overstatement of the position and simply makes it a very tendentious political document.

  It makes clear, for example, that what was spelt out by the High Court is to be significantly varied. It says:

. . . where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.

This is a deliberate variation from what the High Court has said. It says also that native titleholders' rights and interests `under the common law of Australia need to be significantly supplemented'. Again, that is certainly not anything that flows from the High Court decision. It is simply a conscious decision on the part of the government as part of a social justice package and one that will need to be followed up in subsequent legislation.

  But it is quite incorrect to put this document forward as though it is simply the unanimous will of the people that the Mabo decision be reflected in this legislation because there is, I think undoubtedly, a very high degree of controversy about the implications and the extent of that decision. It has been described, for example, as the greatest obiter dicta in history, and anyone who understands the law has to recognise that this decision was only confined to one group of offshore islands so that ultimately any decision about the rest will have to be reconsidered by the High Court. Undoubtedly, it will do so in the context of this legislation. But to make sweeping statements about what the High Court has done and what the people of Australia intend, I think, goes well beyond what one would normally expect to find in a preamble.

  I say briefly in relation to the amendment that we find it objectionable for two reasons: it says, `Governments should, where appropriate, facilitate negotiation on a regional basis'. It clearly purports to tell state governments how to organise their affairs. It certainly says that this should take place in relation to land and proposals for the use of land for economic purposes. Again, the constitution makes it plain that land management decisions are the responsibility of the states, yet this preamble baldly asserts that there is a bounden duty and obligation on all governments, state and federal, to negotiate on a regional basis.

  If we take that at face value, at which I suppose it is intended to be taken, then this is effectively telling the states to ignore their own boundaries, to adopt an entirely non-federal approach to what is essentially a state issue. Therefore, if the constitution is to have any meaning—and we certainly believe its meaning is clear—then this preamble would simply negate it for other political reasons. It is certainly not acceptable for that reason.